Barnesboro Borough v. Speice

• Decision Date: 11 October 1909
• Docket Number: 192-1909
• Citation: 40 Pa.Super. 609
• Parties: Barnesboro Borough v. Speice, Appellant
• Court: Pennsylvania Superior Court

40 Pa.Super. 609

Barnesboro Borough v. Speice, Appellant

No. 192-1909

Superior Court of Pennsylvania

October 11, 1909

Argued May 3, 1909

Appeal by defendant, from judgment of C.P. Cambria Co.-1908, No 540, overruling demurrer to statement of claim in case of Barnesboro Borough v. Martha Speice.

Assumpsit under the Act of April 4, 1907, P. L. 40, to recover an assessment against property for road benefits.

The court in an opinion by O'Connor, P. J., overruled demurrer to statement of claim.

Error assigned was the judgment of the court.

M. D Kittell, for appellant. -- An assessment by a municipality for paving a street is a tax, and cannot be collected as an ordinary debt by a common-law action, unless such remedy is given by statute: McKeesport Borough v. Fidler, 147 Pa. 532; Crafton Borough v. Richards, 17 Pa. 835.

A municipal lien for street improvement is a proceeding in rem. It is filed against the abutting or adjacent property and involves no personal liability on the part of the owner Emrick v. Dicken, 92 Pa. 78.

An act imposing new liabilities will not be construed to have a retroactive effect: Commonwealth v. Bessemer Co., 207 Pa. 302; Horn & Brannen Mfg. Co. v. Steelman Co., 215 Pa. 187; Smith v. R. R. Co., 36 Pa.Super. 584; Fahnestock v. Wilson, 95 Pa. 301; Tarentum Borough v. Moorhead, 26 Pa.Super. 273.

Reuel Somerville, for appellee. -- The act affects merely the remedy: Krause v. P.R. R. Co., 2 Pa. C.C. 60; McFarland v. Township, 12 S. & R. 296; Penrose v. Erie Canal Co., 56 Pa. 46; Long's App., 87 Pa 114; Towamencin Road, 23 Pa. C.C. 113; Kille v. Iron Works, 134 Pa. 225; Lane v. White, 140 Pa. 99; Byers v. R. R. Co., 26 P.L.J. (N. S.) 447; Bolton v. Johns, 5 Pa. 145; Clark v. Herring, 5 Bin. 33; Greeves v. McAllister, 2 Bin. 591.

When a right exists without a remedy, the legislature may rightfully provide one: Lycoming County v. Union County, 15 Pa. 166; Schenley v. Com., 36 Pa. 29; Miller's Est., 18 Pa. Dist. 225.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

PORTER, J.

The plaintiff borough, upon petition of the requisite number of owners of abutting property, graded, paved and curbed a street, under the provisions of the Act of April 23, 1889, P. L. 44, which authorizes an assessment upon abutting property under the foot front rule. The work was completed on November 26, 1906, and the borough engineer on January 3, 1907, made an assessment against the property of the defendant for the sum of $ 516. The statute under which the work was done did not authorize an assessment against the owner of the property personally, and the borough did not file a lien against the property under the authority conferred by that statute. The Act of April 4, 1907, P. L. 40, provides: " That hereafter all municipalities of the Commonwealth of Pennsylvania may proceed for the recovery or collection of any municipal claim or claims whatsoever by lien or by an action of assumpsit." The plaintiff borough, on September 2, 1908, brought an action of assumpsit against the appellant for the recovery of the amount of the assessment which had been made against her property in January, 1907. The defendant filed an affidavit of defense, averring that upon the facts hereinbefore stated she was not personally liable, in this action, for the amount of said assessment. The court below entered judgment for want of a sufficient affidavit of defense, and the defendant appeals. The only question raised by the specifications of error, and argued in this court, was whether the act of 1907 should be given a retroactive effect and held to apply to cases in which the improvement had been completed and the assessment of benefits, alleged to have resulted from it, made prior to the enactment of that statute. The view which we take of the case renders it unnecessary to consider whether the Act of April 4, 1907, P. L. 40, applies to assessments made under the Act of April 23, 1889, P. L. 44, or what defenses a defendant may make to an action of assumpsit brought upon a municipal claim under the provisions of the statute first mentioned.

The plaintiff is not entitled to recover in this action unless the statute of 1907 is to be given a retrospective effect; for at the time the work was done and until long after the assessment for it was made the defendant was not liable personally to be called upon to pay this charge. An assessment by a municipality for improving a street is a tax and cannot be collected as an ordinary debt by a common-law action, unless such remedy is given by statute: McKeesport v. Fidler, 147 Pa. 532, 23 A. 799; Philadelphia v. Merklee, 159 Pa. 515, 28 A. 360; Philadelphia v. Bradfield, 159 Pa. 517, 28 A. 360; Franklin v. Hancock, 18 Pa.Super. 398; s. c., 204 Pa. 110. It is within the legislative power of the commonwealth to grant to municipalities a remedy for the collection of taxes against property by a personal action against the owner: Weber v. Reinhard, 73 Pa. 370; In re Centre Street, 115 Pa. 247, 8 A. 56; Vacation of Howard Street, 142 Pa. 601, 21 A. 974; Com. v. Mahon, 12 Pa.Super. 616. The legislation under which the borough proceeded to make this improvement authorized only an assessment upon the property benefited, to be enforced by a proceeding in rem against that property; it imposed no personal obligation or duty upon the owner to pay. The property might be sold for the assessment, but the owner was free from any personal liability. Did the act of 1907 operate retrospectively, and impose on the defendant a personal liability growing out of transactions which had been completed before the statute was enacted?

The general rule undoubtedly is that legislation which affects rights will not be construed to be retroactive unless it is explicitly so declared in the statute. But where it concerns merely the mode of procedure it is applied, as of course, to litigation existing at the time of its passage: Kille v Reading Iron Works, 134 Pa. 225, 19 A. 547. Retrospective laws may be supported when they impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted: Shonk v. Brown, 61 Pa. 320. " Retrospective laws generally, if not universally, work injustice, and ought to be so construed only when the mandate of the legislature is imperative:" Taylor v. Mitchell, 57 Pa. 209. " There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively unless the language is so clear as to preclude all question as to the intention of the legislature:" Neff's Appeal, 21 Pa. 243; McCabe v. Emerson, 18 Pa. 111. These well-settled principles have never been departed from and have been recognized and...